CHAPTER 11 SPECIAL PROBLEMS FOR UNDERGROUND MINE OPERATORS IN THE WEST UNDER THE RECLAMATION LAWS

• Jurisdiction: United States

Western Land Use Regulation and Mined Land Reclamation
(Nov 1979)
CHAPTER 11
SPECIAL PROBLEMS FOR UNDERGROUND MINE OPERATORS IN THE WEST UNDER THE RECLAMATION LAWS
John F. Welborn and Richard L. Fanyo
Welborn, Dufford, Cook & Brown
Denver, Colorado

INTRODUCTION

"[A]nd surface impacts incident to an underground coal mine."¹

With these words the federal Surface Mining Control and Reclamation Act of 1977² (SMCRA) brings underground coal mines into the world of mined land reclamation on a full scale, a world which was largely unfamiliar to most underground miners prior to the enactment of that statute. Though some states had reclamation laws covering underground mines, few set such stringent reclamation standards and few brought the administering agency and the public into the actual plans and operations of the underground mine operator to the extent done by SMCRA.

For the most part, compliance with the reclamation laws creates problems for the underground mine operator similar to those created for the surface mine operator. However, there are four areas in which underground mine operators appear to be facing special and unique problems: subsidence, waste disposal, ground water and sediment control. This paper is an effort to look at these four areas of concern, as they effect both coal and non-coal underground mine operations in the West, and to raise some of the questions which these areas of concern present to mine operators faced with complying with the various state and federal reclamation statutes and regulations.

SMCRA does, to a certain extent, reflect Congress's understanding of the difference between surface and underground coal mining in its direction to the Office of Surface Mining (OSM) to consider the "distinct differences between surface coal mining and underground coal mining" in adopting rules and regulations directed towards surface effects of underground coal mining operations.³ However, after working with the regulations so promulgated many western miners wish that Congress had also required that the distinct differences between mining in the East and mining in the West be taken into account. It is the fact that the regulations appear to be aimed at conditions in eastern coal mines which raises the most significant potential problems for western mining.

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This paper focuses primarily on SMCRA and its counterparts in the various western states. However, where these states have statutes covering non-coal underground mines these are discussed as well. Moreover, non-coal underground miners should be aware of what is happening to their coal mining counterparts under SMCRA because the act provides for a study to establish effective and reasonable regulation of mining operations which mine minerals other than coal.⁴ This study by the National Academy of Sciences' Committee on Surface Mining and Reclamation is now nearly complete and should be watched by non-coal miners. The spector that this committee may recommend federal control over the mining of minerals such as copper and uranium, both of which minerals are produced in Arizona, has been raised as a reason why congressman Udall should take a softer stance on the so-called Rockefeller Amendment to SMCRA.⁵

SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977

Subsidence

SMCRA requires underground mine operators "to adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible."⁶ The permanent regulations promulgated pursuant to SMCRA seemingly expand this requirement by requiring that subsidence be prevented so as to maintain the value and the reasonably foreseeable use of surface lands over underground mines.⁷ The permanent regulations require restoration of surface lands materially damaged by subsidence,⁸ purchase of structures damaged by subsidence at their presubsidence value,⁹ and no mining under perennial streams, water impoundments, aquifers, public buildings or urbanized areas unless the regulatory authority finds that such mining will not cause material damage or create imminent danger.¹⁰ As is stated below, the idea that the regulatory authority can predict such occurrences may well be wrong.

SMCRA creates an exception to the requirement that subsidence be prevented "in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner."¹¹ It is generally thought that this sub-section is intended to create an exception for the kind of subsidence that occurs in connection with long-wall mining.

However, the permanent regulations paraphrase this portion of the Act and do not accurately reflect the long-wall mining exception. Instead, they require that underground mining activity be planned and conducted so as to prevent subsidence from causing material damage to the surface, and they list planned and controlled subsidence as

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one way this may be accomplished.¹² SMCRA seems to say that no measures to prevent subsidence from causing material damage need be adopted where the mining technology used requires subsidence in a predictable and controlled manner. The regulations on the other hand, seem to require the prevention of material damage in all cases, without exception, though the preamble to the regulations may allay some fears in this regard.¹³

In addition, the exception contained in the Act has little meaning unless there is such a thing as predictable and controlled subsidence. The preamble to the permanent regulations relating to subsidence lists a string of authorities and technical literature relied upon and blithely states that the potential effects of subsidence can be determined and that there is technology available to minimize and control subsidence.¹⁴ However, most of the authorities cited relate to European or eastern mines. The truth in the Western states is, and the subsidence specialists in the OSM regional office in Denver agree, very little is known about subsidence caused by mining in this area. Predictions like those that the Germans have been making for years about subsidence in that country cannot be made here. The computer models developed there are based on facts developed over hundreds of years of mining in and around populated areas and they are based on geology which is vastly different from that found here. There is no such data base in the West. The geology here is not only unlike that found in Europe and the East, it also differs from one mine to another throughout the West.

More importantly, it is only subsidence which causes material damage which must be prevented. Opinions as to what damage is "material" in a given situation vary greatly, and it is not clear yet whether this is an environmental standard, a monetary standard, or both.

For these reasons, the preamble is wrong in stating that minimum national standards to deal with subsidence can be set and that such standards will prevent operators in one state from having unfair competitive advantages.¹⁵ It seems more unfair, to saddle western underground mine operators who are mining in very sparsely populated, rural areas where little is known about subsidence with standards which were obviously developed to prevent material damage to surface areas, structures and dwellings in populated eastern communities.

Fortunately, the Denver regional OSM office appears to be in agreement that little is known about subsidence in

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this area. That office is taking the position that the federal permanent regulations and SMCRA by calling for subsidence control only to the extent technologically possible allow room for interpretation on a case by case basis. OSM's primary goal appears to be to gather as much information as possible about subsidence, and mine operators can expect to be required to monitor subsidence by means of bench marks and frequent surveys of those bench marks. The Denver OSM office indicates that the U.S. Forest Service in Utah is requiring underground miners mining on Forest Service lands in that State to share the cost of the establishment of bench markers and of aerial surveys in order to gather a data base on subsidence. In addition, the United States Bureau of Mines is attempting to let out a contract under which detailed research on subsidence in the west would be done.

Hopefully, this research and the information it yields will lead to the drafting of regulations which are more meaningful than those, for instance, which now say that subsidence can be prevented from causing material damage to the surface "by leaving adequate coal in place, back filling, or other measures to support the surface." What is "adequate coal" and what are other measures? Is the surface supported if it subsides only a few inches, or a foot or five feet? Does it make a difference if the mine operator owns the surface? What really is at issue is the concept of material damage. If the end use is grazing land, the amount of subsidence would not seem to matter. Assuming that most underground mining in the West occurs in sparsley populated areas, material damage should have a very different meaning here.

Waste Disposal

SMCRA requires the underground coal mine operator to return mine and processing waste, tailings, and any other wastes incident to the mining operation, to the mine workings or excavations "to the extent technologically and economically feasible."¹⁶ For many underground miners, the surface area at the mine site is limited, and underground disposal is often the only alternative whether it is technologically or economically feasible or not. Wastes which are not so returned to the underground workings must be graded to a final contour which is compatible with the natural surroundings and they must be stabilized and revegetated.¹⁷ The waste piles must be constructed in compacted layers using incombustible and impervious materials in order to assure...